high court

In the normal course all decisions of a High Court would be binding on a District Court or a Tribunal which is subject to supervisory jurisdiction of a particular High Court[1] and the decisions of the Supreme Court are considered the law of the land[2].

When a High Court or Supreme Court is faced with a judgement cited before it there are certain rules for maintaining uniformity in law and of precedents commonly known as the principle of stare decisis.

The following is the practice usually adopted:

The law laid down by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

“42… In fact, the full form of the principle, stare decisis et non quieta movere which means “to stand by decisions and not to disturb what is settled”, was put by Coke in its classic English version as: ‘Those things which have been so often adjudged ought to rest in peace.”

Even when a Court is faced with two conflicting judgements of a superior court of equal strength the Court may follow a decision which it considers to be correctly decided. This was stated in Jaydeo v. State of Maharashtra[4].

“24. The Full Bench of this Court in Kamleshwar Ishwardas Patel v. Union of India[5] reported in 1994 Mh LJ 1669 dealing with a question as to what course has to be followed by the High Court when confronted with contrary decisions of the Supreme Court emanating from Benches of co-equal strength, has held that the High Court is not necessarily bound to follow the decision later in point of time, but must follow the one which in its view is better in point of law. For coming at such a conclusion, the Full Bench of this Court has relied on the judgment of the Constitution Bench of the Supreme Court in f Atma Ram v. State of Punjab[6].”

The question posed in this article relates to the question we are often faced with at one time or another. What is the correct course to follow when we are faced with a decision which decides in a particular way but does not refer to any statutory provision, decides contrary to statute or ignores relevant provisions or does not give any reasons etc for its decision. What is the value of such a decision, does it amount to a precedent or can it be ignored even though it may be a decision of a superior Court.

In such a case it is open to invoke the principle of “per incuriam” and contend that the judgement be ignored as it does not lay down the correct position in law.

The concept of per incuriam was examined in Hyder Consulting (UK) Ltd. v. State of Orissa[7] where it was held:

“46. Before I consider the correctness of the aforementioned decisions, it would be necessary to elaborate upon the concept of “per incuriam”. The Latin expression “per incuriam” literally means “through inadvertence”.A decision can be said to be given per incuriam when the court of record has acted in ignorance of any previous decision of its own, or a subordinate court has acted in ignorance of a decision of the court of record. As regards the judgments of this Court rendered per incuriam, it cannot be said that this Court has “declared the law” on a given subject-matter, if the relevant law was not duly considered by this Court in its decision. In this regard, I refer to State of U.P. v. Synthetics and Chemicals Ltd.[8], wherein R.M. Sahai, J. in his concurring opinion stated as follows: (SCC p. 162, para 40)

“40. ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’.”

Some of the factors to consider while contending that a decision is not a binding precedent and should not be followed or be ignored on the above principle are now considered set out hereafter:

A decision where the point in issue is not argued or considered by the Court or decision rendered without argument, without reference to the crucial words of the rule, and without any citation of authority.

A decision where a mere direction is issued without laying down any principle of law.

State of UP v. Jeet S. Bisht[9]

“18. No doubt in the aforesaid decision various directions have been given by this Court but in our opinion that was done without any discussion as to whether such directions can validly be given by the Court at all. The decision therefore passed sub silentio. The meaning of a judgment sub silentio has been explained by this Court in Municipal Corpn. of Delhi v. Gurnam Kaur[10] (vide paras 11 and 12) as follows: (SCC pp. 110-11)

“… ‘A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of Point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided Point B in his favour; but Point B was not argued or considered by the court. In such circumstances, although Point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on Point B. Point B is said to pass sub silentio.’

In Gerard v. Worth of Paris Ltd.[11] the only point argued was on the question of priority of the claimant’s debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd.[12] the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided ‘without argument, without reference to the crucial words of the rule, and without any citation of authority’, it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed.”

* * *

21. It is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent.

22. In Municipal Committee, Amritsar v. Hazara Singh[13] the Supreme Court observed that only a statement of law in a decision is binding. In State of Punjab v. Baldev Singh[14] this Court observed that everything in a decision is not a precedent. In Delhi Admn. v. ManoharLal[15] the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent.”

(emphasis supplied)

A decision decided without a discussion on facts and law

D.J. Malpani v. Commissioner of Central Excise[16]

“27. In this case, CESTAT decided against the assessee relying on Panchmukhi[17] (supra). The case of Panchmukhi (supra) was apparently decided not after a discussion on facts and law but because the counsel for the revenue submitted that the matter is covered by the decision in TISCO Ltd.[18] (supra) and the counsel for the assessee “was not in a position to dispute this legal position”. The judgment in Panchmukhi (supra) has little precedential value. The point whether Dharmada involved in Panchmukhi (supra) and the surcharge held as price in Tata Iron & Steel (supra) were identical and liable to be included in the transaction value passed sub-silentio. Salmond on Jurisprudence, Twelfth Edition p.15 states that a decision held is not binding since it was decided “without argument, without reference to the crucial words of the rule, and without any citation of authority”, therefore, would not be followed. The author also states that precedents sub-silentio and without arguments are of no moment. This is enough reason for not treating the decision in Panchmukhi (supra) as a binding precedent.”

(emphasis supplied)

A decision which is not express and is not founded on reasons nor proceeds on consideration of issue

(i) State of U.P.v. Synthetics and Chemicals Ltd.[19]

“40. ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’. (Young v. Bristol Aeroplane Co. Ltd.[20] ) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey[21] this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury’s Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding.

41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. “A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind.” (Salmond on Jurisprudence, 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd.[22] the Court did not feel bound by earlier decision as it was rendered ‘without any argument, without reference to the crucial words of the rule and without any citation of the authority’. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur[23].The Bench held that, ‘precedents sub-silentio and without argument are of no moment’. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union Territory of Pondicherry[24] it was observed, ‘it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein’. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.”

(emphasis supplied)

(ii) Arnit Das v.State of Bihar[25]

“20.A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined. (See State of U.P. v. Synthetics & Chemicals Ltd.[26] ).”

(emphasis supplied)

(iii) Divisional Controller, KSRTC v. Mahadeva Shetty[27]

“23. So far as Nagesha case relied upon by the claimant… precedent sub silentio and without argument are of no moment. Mere casual expression carry no weight at all, nor every passing expression of a judge, however eminent, can be treated as an ex cathedra statement having the weight of authority.”

Any direction given on special facts, in exercise of jurisdiction under Article 142, is not a binding precedent

Ram Pravesh Singh v. State of Bihar[28]

“23. The appellant next submitted that this Court, in some cases, has directed absorption in similar circumstances. Reliance is placed on the decision in G. Govinda Rajulu v. A.P. State Construction Corpn. Ltd.[29] We extract below the entire judgment: (SCC p. 651, paras 1-2)

“1. We have carefully considered the matter and after hearing learned counsel for the parties, we direct that the employees of the Andhra Pradesh State Construction Corporation Ltd. whose services were sought to be terminated on account of the closure of the Corporation shall be continued in service on the same terms and conditions either in the government departments or in the government corporations.

2. The writ petition is disposed of accordingly. There is no order as to costs.”

The tenor of the said order, which is not preceded by any reasons or consideration of any principle, demonstrates that it was an order made under Article 142 of the Constitution on the peculiar facts of that case. Law declared by this Court is binding under Article 141. Any direction given on special facts, in exercise of jurisdiction under Article 142, is not a binding precedent. Therefore, the decision in Govinda Rajulu[30] cannot be the basis for claiming relief similar to what was granted in that case. A similar contention was negatived by the Constitution Bench in Umadevi (3)[31] : (SCC p. 39, para 46)

“The fact that in certain cases the court had directed regularisation of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation.”

To conclude one has to be mindful of the above when decisions are cited both when you are yourself citing it and when it is used against youand every attempt must be to cite decisions with caution and responsibility so that the correct principle of law is laid down.

*Advocate, High Court, Bombay. Assisted by Arjun Prabhu, Sheetal Parkash and Mayur Agarwal. Author can be reached at karlshroff@gmail.com

[1] Article 227.Power of superintendence over all courts by the High Court.–Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

[2] Article 141. Law declared by Supreme Court to be binding on all courts.—The law declared by the Supreme Court shall be binding on all courts within the territory of India.

For the purpose of filing of pleadings, petitions, affidavits or other documents in High Court and all other Courts in State of Tripura, following specifications of paper and font type would be applicable:

“Superior quality A4 size paper having not less than 75 GSM printing on both sides of paper with font — Times New Roman, font size 14, in one and half line spacing (for quotations and indents — font size 12 in single line spacing), with margin of 4 cm on left & right snd 2 cm on top & bottom.”

For all other internal communications and official purposes of Registry of the High Court and other courts of District Judiciary also, A4 size paper having not less than 75 GSM would be utilized and except for judgments of Courts, printing may be done on both sides in all documents.

“The Courts are guardians of the rights and liberties of the citizen and they shall fail in their responsibility if they abdicate their solemn duty towards the citizens.”

Supreme Court: When the bench of Ashok Bhushan and Navin Sinha, JJ was called upon to decide whether the High Court in exercise of its Constitutional jurisdiction conferred under Article 226 of Constitution of India can pass an order interdicting a legal fiction engrafted in a State enactment, it held,

“The power under Article 226 of the Constitution overrides any contrary provision in a Statute and the power of the High Court under Article 226 cannot be taken away or abridged by any contrary provision in a Statute.”

It, further, noticed that the power of judicial review vested in the High Courts under Article 226 and this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution and is basic structure of our Constitution. The jurisdiction under Article 226 is original, extraordinary and discretionary. The look out of the High Court is to see whether injustice has resulted on account of any decision of a constitutional authority, a tribunal, a statutory authority or an authority within meaning of Article 12 of the Constitution.

The precise question before the Court was whether Section 5B of the Mumbai Municipal Corporation Act, 1888 oust the jurisdiction of the High Court.

A candidate who has applied to Scrutiny Committee for the verification of his caste certificate before date of filing Nomination but who had not received the validity certificate on the date of filing Nomination has to submit an undertaking that he shall submit within a period of six months from the date of election, the validity certificate issued by the Scrutiny Committee.

If a person fails to produce the validity certificate within a period of six months from the date of election, that election shall be deemed to have been terminated retrospectively and he shall be disqualified for being a Counsellor. The period of six months was amended to be twelve months by Amendment Act, 2018.

Holding that Section 5B of the Mumbai Municipal Corporation Act, 1888 does not oust the jurisdiction of High Court under Article 226 of the Constitution, the Court said that the High Court in exercise of jurisdiction under Article 226 of the Constitution can pass an order interdicting the legal fiction as contemplated under second proviso to Section 5B, provided the legal fiction had not come into operation.

“When a citizen has right to judicial review against any decision of statutory authority, the High Court in exercise of judicial review had every jurisdiction to maintain the status quo so as to by lapse of time, the petition may not be infructuous. The interim order can always be passed by a High Court in exercise of writ jurisdiction to maintain the status quo in aid of the relief claimed so that at the time of final decision of the writ petition, the relief may not become infructuous.”

It is true that requirement of submission of Caste Validity Certificate within a period of one year under Section 5B of Mumbai Municipal Corporation Act is mandatory requirement but in the facts of the case before the Court, before the expiry of the period of six month, the Caste Scrutiny Committee had illegally rejected the claim necessitating filing of writ petition by aggrieved persons in which writ petition the interim relief was granted by the High Court. It, hence, noticed that in the facts of the present case, the deeming fiction under Section 5B of retrospective termination of the election could not come in operation due to the interim order passed by the High Court.

“The power of the High Court to grant an interim relief in appropriate case cannot be held to be limited only for a period of one year, which was period envisaged in Section 5B for submission of the Caste Validity Certificate. No such fetter on the power of the High Court can be read by virtue of provision of Section 5B.”

Supreme Court: In a case where a Judicial Officer in Delhi Higher Judicial Services, against whom disciplinary proceedings alleging sexual harassment is underway, had sought a copy of Preliminary Inquiry Report, the bench of Ashok Bhushan and Navin Sinha, JJ has held that no prejudice can be held to be caused to the petitioner by non-supply of the Preliminary Inquiry.

Considering that the Preliminary Inquiry Report did not contain any findings on allegations made against the petitioner and only opined that inquiry should be held, the Court said that the right of appeal is given to an aggrieved person only when report is submitted under Section 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 to the employer. It further explained,

“Section 13(3) contemplates the report of Internal Complaints Committee when it “arrives at the conclusion that the allegation against the respondent has been proved”. It is not the case of any of the parties that the report of the Committee dated 05.11.2016 is the report where allegation against the petitioner has been proved. Even under Section 11(1) in the second proviso, the only contemplation is to make available a copy of the findings. Thus, when the report in which there are no findings, parties are not entitled to have the copy.”

Disciplinary authority for Judicial Officers

The disciplinary jurisdiction vests in the High Court which can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismissal or removal. The High Court can also suspend a member of the judiciary. Insofar as dismissal or removal is concerned, the said orders are required to be passed by the Governor on the recommendation of the High Court. The fact that the orders of dismissal or removal are issued by the approval of the Governor in no manner denude the disciplinary control of the High Court.

Full Court’s power to suspend Judicial Officer

The provisions of the Act, complaint mechanism and mechanism for constitution of the Internal Complaints Committee, mechanism to inquire the complaint are all for protection of dignity and welfare of women at workplace. The provisions of Sections 11 and 13 in no manner affect the control of the High Court under Article 235, which it has with respect to judicial officers as noted above. The power to suspend the judicial officer vests in the High Court. The Full Court of the High court is in no manner precluded from initiating disciplinary inquiry against the petitioner and placing the petitioner under suspension on being satisfied that sufficient material existed.

Supreme Court: In the case where the bench of Dr. DY Chandrachud and Indira Banerjee, JJ was called upon to decide whether the existence of an alternate remedy would create a bar on High Court’s writ jurisdiction, it held,

“The existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Court’s writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court.”

Explaining that the court added that courts had themselves imposed certain constraints on the exercise of their writ jurisdiction to ensure that the jurisdiction did not become an appellate mechanism for all disputes within a High Court’s territorial jurisdiction, the bench said,

“The intention behind this self-imposed rule is clear. If High Courts were to exercise their writ jurisdiction so widely as to regularly override statutory appellate procedures, they would themselves become inundated with a vast number of cases to the detriment of the litigants in those cases.”

This would also defeat the legislature’s intention in enacting statutory appeal mechanisms to ensure the speedy disposal of cases.

On the argument that if, by the self-imposed rule, the writ jurisdiction of High Courts is circumscribed by the existence of a suitable alternate remedy, whether constitutional, statutory, or contractual, then a High Court should not exercise its writ jurisdiction where such an alternate remedy exists, the bench said that it is a misconceived argument and that,

“The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors.”

Supreme Court: The Court, yet again, reminded the High Courts of the limitations under Section 100 CPC and said:

“despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.”

The bench L Naeswara Rao and MR Shah, JJ was hearing the appeal against the judgment of Punjab and Haryana High Court wherein the High Court had allowed the Second Appeal and had quashed and set aside the judgment and decree passed by the First Appellate Court dismissing the suit and consequently has restored the judgment and decree passed by the Trial Court decreeing the suit relating to perpetual injunction.

The bench noticed that:

“While interfering with the judgment and order passed by the first Appellate Court, it appears that while upsetting the judgment and decree passed by the First Appellate Court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that High Court has not at all appreciated the fact that the High Court was deciding the Second Appeal under Section 100 of the CPC and not first appeal under Section 96 of the CPC.”

The Court reiterated that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to re­appreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal.

Supreme Court: In a matter where the Gujarat High Court had set aside the order passed by a Chief Judicial Magistrate who had taken cognizance of the offences punishable under Sections 420, 465, 467, 468, 471, 477A and 120-B IPC on the basis of the second supplementary charge sheet filed by the police and ordered issuance of process to the accused, the bench of R. Banumathi and Indira Banerjee, JJ held that the High Court ought not to have gone into the merits of the matter when the matter is in nascent stage.

Holding that the High Court overstepped in the said matter, the bench said:

“When the prosecution relies upon the materials, strict standard of proof is not to be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take. All that the court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding.”

Stating that while hearing revision under Section 397 Cr.P.C., the High Court does not sit as an appellate court and will not reappreciate the evidence unless the judgment of the lower court suffers from perversity, the bench said:

“materials produced by the prosecution ought not to have been brushed aside by the learned Single Judge to quash the order of issuance of summons to the respondent-accused. As to whether these evidences are sufficient to sustain the conviction of the respondent-accused or whether he has a plausible defence or explanation is the matter to be considered at the stage of trial. The learned Single Judge ought not to have weighed the merits of the case at the initial stage of issuance of summons to the accused.”

The Court explained that while taking cognizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the accused and when the satisfaction of the Magistrate was based on the charge sheet and the materials placed before him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought not to have been interfered with.

It was, hence, held that the High Court committed a serious error in going into the merits and demerits of the case and hence, the impugned order was set aside. [State of Gujarat v. Afroz Mohammed Hasanfatta, 2019 SCC OnLine SC 132, decided on 05.02.2019]

Supreme Court: A Bench comprising of A.K. Sikri, Ashok Bhushan and M.R. Shah, JJ. disposed of a matter concerning execution of conveyance deed and set aside the orders passed by Bombay High Court for want of jurisdiction.

The present proceeding arose out of a suit filed by original plaintiffs– purchasers of flats in the building developed by the defendant Trust. The plaintiffs filed a suit before the trial court for directing the Trust to perform its obligations including execution of conveyance deed of the plot where the subject building was developed. The trial court decreed the suit of plaintiffs. Aggrieved by the same, the Trust approached the High Court. Before the High Court, the plaintiffs filed Note for speaking to Minutes for clarification of certain details on record. The High Court dismissed the appeals and petitions filed by the Trust. However, it is pertinent to note that the impugned order was passed by the High Court below the Note. Aggrieved by orders of the High Court, the Trust preferred the present appeals. The Supreme Court quashed the impugned orders on certain grounds including, inter alia, for want of jurisdiction.

The Court was of the opinion that while passing the order below the Note, the High Court traveled beyond its jurisdiction in regard to the scope of deciding a Note for speaking to Minutes. It explained, “A Note for speaking to Minutes is required to be entertained only for the limited purpose of correcting a typographical error or an error through oversight, which may have crept in while transcribing the original order. Once, the judgment/order is pronounced and if any party to the same wants any rectification of any typographical error and any clerical mistake regarding the date or number, such a party may apply to the concerned Court for correcting such an error in the judgment/order. However, a Note for speaking to the Minutes cannot be considered at par with a review application or in a given case, with an application for clarification/modification of an order. A Note for speaking to the Minutes can never be considered to be an application of such a nature.” It was held that while passing the impugned order below the Note, the High Court virtually modified its original order passed in the first appeal. Such a course was not open to the High Court and therefore the order was liable to be set aside. For such and other reasons, the impugned orders of the High Court were set aside. [Akhil Bhartvarshiya Marwari Agarwal Jatiya Kosh v. Brijal Tibrewal,2018 SCC OnLine SC 2816, decided on 14-12-2018]

Supreme Court: A.M. Sapre, J. speaking for himself and Uday U. Lalit, J. allowed an appeal filed by the State of U.P. against the judgment of a Division Bench of the Allahabad High Court whereby the appellant’s application under Section 378(3) CrPC was rejected and the judgment of Additional Sessions Judge acquitting the accused (respondents herein) was affirmed.

The respondents were prosecuted and tried for commission of offences punishable under Sections 363, 366, 376 and 120-B IPC. The Additional Sessions Judge, on appreciating the evidence adduced by the prosecution, acquitted the respondents of all the charges. Aggrieved by the acquittal, the appellant filed an application for leave to appeal under Section 378(3) before the High Court which was rejected vide the order impugned. Against this order of the High Court, the appellant preferred the instant appeal.

The Supreme Court referred to State of Maharashtra v. Sujay Mangesh Poyarekar(2008) 9 SCC 475for looking at the parameters to be kept in mind by the High Court while deciding an application for leave to appeal. The Court perused the order impugned and felt constrained to observe that the High Court grossly erred in passing the same without assigning any reason. It was a clear case of non-application of mind, held the Supreme Court. The order impugned neither sets out the facts nor the submissions of the parties nor the findings nor the reasons as to why the leave to appeal was declined. In such circumstances, the order impugned was set aside and the matter was remanded back to the High Court for deciding the application afresh. The appeal was, thus, allowed. [State of U.P. v. Anil Kumar,2018 SCC OnLine SC 1223, dated 29-08-2018]

“High Court is the body which is intimately familiar with efficiency and quality of officers, fit to be promoted as District Judges.”

Delhi High Court: The Division Bench comprising of S. Ravindra Bhat and Sunil Gaur, JJ., addressed a petition of a senior Delhi Higher Judicial Service DHJS Officer in regard to “new criteria for appointment to the position of District and Sessions Judge.”

The grievance that the petitioner placed before the Court was that her Fundamental Right to Equality has been violated due to the adoption of resolution evolving new criteria for appointment to the position of District and Sessions Judge by the Full Court of the Delhi High Court. In accordance to the criteria now there was a requirement of “A” grading in each of the previous years of ACR appraisals.

The contentions submitted by the petitioner were that pursuant to the changes in the earlier adopted 2009 Resolution concerning the appointment to the position of District and Sessions Judge, it had adversely affected the progression prospects of many Additional District Judges and now it had affected the petitioner too. Further, she alleged that she was kept in dark regarding the changes made to the resolution as it was never communicated to her. The whole move of modification would jeopardize the promotion prospects in the Higher Judicial Services and also violate Article 16 of the Constitution of India. The next contention put forward was, that Rule 27 of DHJS Rules is arbitrary and unprincipled and was unsustainable.

The High Court, concluding the matter stated above analysed both the issues placed by the petitioner. Petitioner’s grievance with respect to her lack of knowledge or not being aware was not justified and stating that “her judicial work was not up to the mark on the basis that she did not know that the best performance would result in selection of District Judge” is something not to be heard by the Court as “service in a judicial department is a mission, given the solemn nature of judging.” Therefore, the Court found no substance in any of the contentions of the petitioner and dismissed the petition by laying down a 5 pointer note to be kept in mind by the appraisal evaluation authorities, which was as follows:

Judicial officer concerned should be award out of 100 marks maximum.

100 marks shall be done with a break up of –

20% for quality of judgments.

25% may be awarded for the institution/disposal ratio.

Maximum 20% may be awarded for the total number of final judgments delivered in the contested matters.

Maximum of 10% for timeliness, promptness in delivery of judgments.

25% by the appraising High Court judge/committee on the basis of interaction/inspection.

Allowance should be given wherever the judicial officer is assigned burdensome administrative tasks.

No officer should be subject to appraisal of any one judge or committee for more than 2 Consecutive years.

Instructions to be issued to the appraising judges/committees to forward instances of outstanding or poor judgments for due consideration and input for the ACR appraisal.

The petition was disposed of on the note that the abovestated directions in respect to the formulation of criteria for uniform grading of judicial officers be suitably incorporated.[Sujata Kohli v. High Court of Delhi,2018 SCC OnLine Del 1069, decided on 21-08-2018]

Madhya Pradesh High Court: In a matter arising under Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002, a Division Bench comprising of Hemant Gupta, CJ and Atul Sreedharan, J. allowed a writ appeal and set aside the Orders of the learned Single Judge as well as the Debts Recovery Tribunal.

The appellant, a secured creditor, invoked the jurisdiction of the District Magistrate under Section 14 of the SARFAESI Act. Against the order passed by the District Magistrate, the respondents preferred a challenge before the Debts Recovery Tribunal who declined to exercise jurisdiction, holding that an application under Section 17 of the Act is not maintainable before the Tribunal. Respondents filed an appeal before the learned Single Judge who by his impugned judgment, allowed the challenge and set aside the Order of the District Magistrate. Aggrieved by the Order of the Single Judge, the appellants were in appeal before the High Court.

The High Court, after considering the record, held that the learned Single Judge was not right in setting aside the Order of the DM. The Court, relying on its previous judgments, held that an appeal under Section 17 of the Act against an order passed by the DM, is maintainable before the Debts Recovery Tribunal. Thus, the Court set aside the orders of the learned Single Judge as well as the Debts Recovery Tribunal. The matter was accordingly sent back to the Tribunal for adjudication under Section 17 of the SARFAESI Act. [Authorized Officer v. Prafulla Kumar Maheshwari; 2018 SCC OnLine MP 325; dated 01-05-2018]

Uttaranchal High Court: While answering the criminal reference in a case falling under the category of ‘rarest of rare cases’, a Division Bench comprising of Rajeev Sharma and Alok Singh, JJ. confirmed the death sentence awarded to the respondent in Sessions trial.

The respondent was convicted under Section 302 IPC for murder and was sentenced to capital punishment. He was further convicted and sentenced under Sections 436, 392 and 411 IPC. The respondent was working as a Mechanic in the motorcycle showroom of one Sanjay Kumar. One Lalita also worked there as a Supervisor. Lalita complained to Sanjay about the appellant, and he was removed from the job. The appellant developed a grudge against them and on a fateful day, the respondent murdered Sanjay by giving him knife blows; chased Lalita and did away with her life; threatened the onlookers; and before escaping, put fire to the showroom. The respondent was tried, convicted and sentenced by the Sessions Court as mentioned above. Learned Additional Sessions Judge made a reference to the High Court for confirmation of death sentence awarded to the respondent.

The High Court considered the record including depositions of the witnesses. The respondent gave a knife blow on the neck of Sanjay and inflicted as many as 10 injuries on Lalita. The medical expert who conducted post-mortem examination deposed that the deceased died due to shock and hemorrhage as a result of excessive bleeding. The Court considered it established that the respondent murdered the deceased and set the showroom ablaze in presence of the witnesses whose testimony could not be assailed. He did not show any repentance, instead threatened the onlookers with dire consequences in case they tried to apprehend him. The Court held that the case fell in the category of ‘rarest of rare’ cases. In the given circumstances, the death sentence awarded to the respondent was confirmed. [State v. Sehzaad Ali, 2018 SCC OnLine Utt 522, dated 01-06-2018]

Karnataka High Court: A Single Judge Bench comprising of Vineet Kothari, J., decided a writ petition filed under Articles 226 and 227 of the Constitution, wherein it declined to grant any relief as prayed for by the petitioner holding that it was not a fit case to be adjudicated under extraordinary jurisdiction of the High Court.

The matter involved a land dispute. The respondents submitted that the parties were already engaged in civil suits in trial court regarding the same subject matter, which were still pending. However, the petitioner submitted that the land in question involved in the above said civil suits and that in the instant petition were different.

The High Court perused the record and held that the question whether the land involved in the civil suits and the petition was same or not deserved to be adjudicated by the Civil Court concerned. The Court categorically opined that the matters involving the exercise of extensive fact finding can only be undertaken in properly instituted civil suits and not in the extra-ordinary jurisdiction under Article 226 of the Constitution. Accordingly, no relief as prayed for by the petitioner was granted. [Chikkannachari v. Department of PWD, State of Karnataka, WP No. 46292 of 2016, dated 1.2.2018]

Delhi High Court: In the order passed by Indermeet Kaur, J., quashed the FIR i.e. FIR No. 0282/2016 registered under Sections 376/366/315/344 of the IPC, 1860 at Sonia Vihar Police Station.

The FIR was quashed on the submission that the FIR registered on 11.08.2016 contained same allegations which were the subject-matter of an earlier FIR i.e. FIR No. 0094/2016 registered at Salon District Police Station, Raebareli under Sections 376/315 of the IPC, which had earlier been quashed on merits by the Bench of Allahabad High Court on 04.07.2016 in Misc. Bench No. 8950 of 2016, as the investigation did not reveal commission of any offence, whereby the Court concluded that the subject-matter of both the FIRs are same, with the only difference being jurisdiction.

Furthermore, the Court held that it is a perfect case where High Court can exercise its inherent powers under Section 482 of CrPC, 1973 and that the entire scenario is nothing but an abuse of the process of court. Accordingly FIR No.0280/2016 stands quashed. [Anup Kumar v. State, 2018 SCC OnLine Del 7069 , decided on 29.01.2018]

Supreme Court: With the intent to make the exercise of senior designation more objective, fair and transparent so as to give full effect to consideration of merit and ability, standing at the bar and specialized knowledge or exposure in any field of law, the 3-judge bench of Ranjan Gogoi, RF Nariman and Navin Sinha, JJ laid down elaborate guidelines for the system of designation of Senior Advocates in the Supreme Court as well as all the High Courts of India.

The Court said:

“The sole yardstick by which we propose to introduce a set of guidelines to govern the matter is the need for maximum objectivity in the process so as to ensure that it is only and only the most deserving and the very best who would be bestowed the honour and dignity. The credentials of every advocate who seeks to be designated as a Senior Advocate or whom the Full Court suo motu decides to confer the honour must be subject to an utmost strict process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter.”

Committee for Designation of Senior Advocates

All matters relating to designation of Senior Advocates in the Supreme Court and all the High Courts of the country shall be dealt with by a Permanent Committee to be known as “Committee for Designation of Senior Advocates” headed by the Hon’ble the Chief Justice of India and consisting of two senior-most Judges of the Supreme Court of India (or High Court(s), as the case may be) and the learned Attorney General for India (Advocate General of the State in case of a High Court). The above four Members of the Permanent Committee will nominate another Member of the Bar to be the fifth Member of the Permanent Committee.

Permanent Secretariat

The said Committee shall have a permanent Secretariat the composition of which will be decided by the Chief Justice of India or the Chief Justices of the High Courts, as may be, in consultation with the other Members of the Permanent Committee. The Permanent Secretariat will:

Compile relevant information regarding the advocate

Publish the proposal of designation of a particular Advocate in the official website of the concerned Court inviting the suggestions/views of other stakeholders in the proposed designation

Put up the case before the Permanent Committee

Criterion for designation

The reputation, conduct, integrity of the Advocate(s) concerned including his/her participation in pro-bono work; reported judgments in which the concerned Advocate(s) had appeared; the number of such judgments for the last five years, will be considered for designating an advocate as a Senior Advocate.

Process of designation

The point based assessment by the Permanent Committee will be made by:

examining each case in the light of the data provided by the Secretariat of the Permanent Committee;

interviewing the concerned Advocate.

All the names that are listed before the Permanent Committee/cleared by the Permanent Committee will go to the Full Court.

Voting by secret ballot will not normally be resorted to by the Full Court except when unavoidable. In the event of resort to secret ballot decisions will be carried by a majority of the Judges who have chosen to exercise their preference/choice.

Review of application

All cases that have not been favourably considered by the Full Court may be reviewed/reconsidered after expiry of a period of two years following the manner indicated above as if the proposal is being considered afresh;

Recall of Designation

In the event a Senior Advocate is guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to continue to be worthy of the designation the Full Court may review its decision to designate the concerned person and recall the same.

The present order of the Court is an outcome of the petition filed by Senior Advocate Indira Jaising, who had also served as Additional Solicitor General for the Union of India. In the petition she contended that the present system of designation of Senior Advocates in the Supreme Court of India was flawed and the system needed to be rectified and acceptable parameters laid down. [Indira Jaising v. Supreme Court of India, 2017 SCC OnLine SC 1223, decided on 12.10.2017]

Supreme Court: Explaining the scope of the expression “the public servant or his administrative superior” under Section 195(1) (a)(i) CrPC, the bench of A.K. Goel and U.U. Lalit, JJ held that the expression cannot exclude High Courts.

Interpreting Section 195(1) (a)(i) CrPC which says that cognizance in respect of offence under sections 172 to 188 IPC cannot be taken except “on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate”, the Court said that that while the bar against cognizance of a specified offence is mandatory, the same has to be understood in the context of the purpose for which such a bar is created. The bar is not intended to take away remedy against a crime but only to protect an innocent person against false or frivolous proceedings by a private person.

It was further held that direction of the High Court is at par with the direction of an administrative superior public servant to file a complaint in writing in terms of the statutory requirement. The protection intended by the Section against a private person filing a frivolous complaint is taken care of when the High Court finds that the matter was required to be gone into in public interest. Such direction cannot be rendered futile by invoking Section 195 to such a situation. Once the High Court directs investigation into a specified offence mentioned in Section 195, bar under Section 195(1)(a) cannot be pressed into service. [CBI v. M. Sivamani, 2017 SCC OnLine SC 845, decided on 01.08.2017]

Supreme Court: Rejecting the plea of Naveen Jindal seeking permission to challenge the Trail Court’s order in Coal Scam, the 3-judge bench headed by Madan B. Lokur, J reiterated that High Courts cannot entertain the appeals challenging the orders of Special Courts. Such pleas can be entertained only by the Supreme Court.

Congress Leader Naveen Jindal had sought for challenging the Trail Court’s order before the Delhi High Court in the Coal Block allocation case where he was charged with corruption, criminal misconduct, cheating and criminal conspiracy in relation to the coal blocks that were allocated to the Jindal Group of companies.

Refusing to entertain his plea, the Court said that it will not revisit it’s July 25, 2014 order which had said that challenge to any interim order of the special court during pendency of trial in coal scam cases will be heard only by it.

Supreme Court: In the PIL relating to lack of basic amenities in the Bandipora District Court affecting the proper functioning of Courts where the issue of regularization of employement by the High Court was in question the Court laid down the following principles:

Article 235 enables the High Court to exercise complete administrative control over the district judiciary which extends to all functionaries attached to those courts, including ministerial staff and employees on the establishment.

Employment in the High Courts or in the courts subordinate to them constitutes public employment.

The date on which the vacancies are likely to occur are foreseeable with a reasonable amount of clarity and precision.

While the High Court is an autonomous constitutional authority whose status cannot be undermined, it is equally necessary for it to strictly comply with the rules framed in making recruitments.

Explaining the concept of regularization, the Court said that it is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution. Essentially a scheme for regularisation, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases it may be left open to Courts to lift the veil to enquire whether the Scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. The State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed is that the principle as formulated above is not meant to create or invest in a temporary or ad hoc Employee the right to seek a writ commanding the State to frame a scheme for regularisation.

The High Court of Jammu & Kashmir had, by order dated 01.12.2015, had observed that over a considerable period of time the state government had not created the required number of posts for the state judiciary as a result of which work has been hampered. According to the High Court, appointment of daily rated workers was necessitated to ensure that judicial work does not suffer. The High Court opined that these workers have been rendering work which should have been assigned to persons appointed on a regular basis against sanctioned posts.

The bench of T.S. Thakur, CJ and Dr. D.Y. Chandrachud and L. Nageswara Rao, JJ, noticing that the direction for regularization was issued by the High Court without considering the relevant constitutional and legal principles, said that it is unfortunate that the state government has allowed the requirements of the state judiciary to be neglected over such a long period of time. The need to facilitate the proper functioning of the High Court and the district judiciary is a constitutional necessity which imposes a non-negotiable obligation on the state government to create an adequate number of posts and to provide sufficient infrastructure. The state government is to blame for the unfortunate situation which has resulted in a large number of persons being recruited on a daily wage basis. [State of Jammu & Kashmir v. District Bar Association, Bandipora, 2016 SCC OnLine SC 1435, decided on 08.12.2016]

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